It is not clear what it will take for the Left to come up with a compelling response to originalism.
Supreme Court Justice Ruth Bader Ginsburg is now 83 years old. One often hears it said that she ought to step down. By now, Ginsburg has a set response to this criticism: She says that she is not the only old justice. She notes that Kennedy is about to turn 80 and Breyer is going to turn 78.
I have no idea whether Ginsburg is too old to perform her duties. What I do know is that Ginsburg appears increasingly prone to making politically inappropriate statements.
In an interview last week, Ginsburg made several improper statements. First, Ginsburg gave what the New York Times describe as “an unequivocal endorsement of Judge Garland,” who President Obama had nominated for the Court but the Senate has refused to consider. It is normally considered improper for a Supreme Court justice to comment on a politically charged issue of this type.
In addition, Ginsburg also asserted that the Senate had an obligation to assess Judge Garland’s qualifications, stating “that’s their job” and “there’s nothing in the Constitution that says the president stops being president in his last year.” Not only do I regard this comment as mistaken, it is once again inappropriate. The President remains the President, of course. The Senate has simply decided not to act on this nominee. Ginsburg’s argument reads like Democratic Party talking points.
Second, Ginsburg made critical comments about Republican presidential nominee Donald Trump. She stated “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.” She also suggested that if Trump were elected, it would be time to move to New Zealand.
How can this not be criticized? If a conservative justice said the same thing about Hillary Clinton, the New York Times would go crazy. Or imagine that a conservative justice made a criticism about Clinton’s e mails. If there is a lawsuit involving the Trump Administration, shouldn’t Ginsburg be recused? Could one really argue that she is not biased or does not at least give the appearance of being biased?
Other statements made by Justice Ginsburg also seem problematic. They don’t really reveal anything we did not know, but they still seem to violate norms for the justices. She asserted that the one case she most wanted overturned was Citizens United. She also noted the possibility of revisiting Heller v. United States. She claimed that Friedrichs v. California Teachers Associated, which deadlocked at 4-4 due to Justice Scalia’s death, was a much better result than the Court would have reached with Justice Scalia on the Court.
In the end, Ginsburg sounds like a Democratic party activist. Critics of her jurisprudence might say that is the way her judicial opinions and votes read as well. But there is a traditional norm of not making extra-judicial statements of the sort she increasingly makes. The Justice ought to keep these type of opinions to herself.
Update: It is good to see the New York Times weigh in against Ginsburg in its most recent editorial. She may listen to the Times, even if she ignores other voices.